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Vijay Kumar (Manager)     14 February 2011

Need your esteemed advice urgently

Dear LCI Members,

Request your advice urgently regarding Land/House agreement. Is it necessary for both Buyer as well as Seller to sign on an agreement as per law OR is it just enjough for the seller to Sign the agreement in the eyes of Law?

Please clarify

Thanks/Sasi



Learning

 11 Replies

Amit Gupta (Advocate)     14 February 2011

under Transffer of property act both the parties are required to sigh the agreement and it must be registed too if possession is also handed over under the agreement

sureshkumar (farmer)     14 February 2011

Sir

we get temporary injuction for tresspass and encroach our land from Munisiff Court. But the Defendent not accept and more tresspass. I have a complaint in Local Police Station. But the SI of Police said that We not authority for civil case. So I sad. then What I do. the opposite Party no response to Police. Because The Opponant Relation is Circle Inspector. So Please advice urgently

mohansreddy (Advocate)     16 February 2011

Move the appropriaye couet of law by engaging counsel for the relief of Injunction if title is perfect and you prove you are in possession of property you will get injunction or else  orders will be passed/application will be disposed off only after appearence of defendant/opponent/respondent 

shankar (advocate)     16 February 2011

apply for contempt of court. also apply for striking off the defence of the defendant for committing breach of court orders. take certified copy of ur inj.application and order below it, and file a complaint in the magistrate court under for criminal tresspass u/s 441 etc. and s.425 for mischief of i.p.c.

adv.s.d.ratnaparkhi, pune

rahul shukla (lawyer)     01 March 2011

Both the parties are required to sign the agreement to sell. The said agreement is required to be registered as after amendment in Registration Act, unless it is registered, it cann't be taken as evidence. In order to give benefits of Section 53A of Transfer of Property Act, the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon or taken into evidence in view of Sections 17(1A) read with Section 49 of the Registration Act.

JaiHind2010 (Owner)     02 March 2011

There is no need to register an "Agreement to Sell" as it does not confer title unlike a Sale Deed. It can be used in evidence without registering.

rahul shukla (lawyer)     02 March 2011

@ JaiHind2010

You need to update your information.

Plz go through the provisions as mentioned in my reply and also to recent judgment dated 02.03.2010 passed by Hon'ble Justice Dhingra in the matter of Arun Kumar Tandon Vs. Akash Telecom Private Limited and Anr in C.M. (Main) No. 1371 of 2008 and C.M. Appl. No. 17532 of 2008. and also to Gazette Notification of Government of India vide a Gazette Notification No,56 dated 24th September,2001 published in the Gazette of India, Extraordinary, Part-II, Section-1

JaiHind2010 (Owner)     02 March 2011

@Rahul Shukla:

 

Held
HELD
The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall notaffect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidencenot as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. (Para 11)

Looking to the nature of the suit, which happens to be a suit for specific performance, the trial court was not justified in refusing to admit the unregistered sale deed dated 27.2.2006 tendered by the plaintiff in evidence. (Para 15)


Cases Reffered
Cases Referred:
1. K.B. Saha and Sons Private Limited v. Development Consultant Limited [JT 2008 (8) SCC 564] (Para 12)
2. Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy [JT 1999 (5) SC 389] (Para 13)

JaiHind2010 (Owner)     02 March 2011

https://indiankanoon.org/doc/1243568/

 

Another case, where unregistered sale deed was allowed in evidence/

rahul shukla (lawyer)     04 March 2011

 

@JaiHind2010

 

So far as question of K.B.Saha judgment is concerned para 11 to 15 as quated in your reply refers the arguments preffered by Mr. Somnath Mukherjee counsel for appellant. observation of Hon'ble Supreme Court is in Para 17 which is as follows:

 

"17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose. In Haran Chandra Chakrvarti v. Kaliprasanna Sarkar AIR 1932 Cal 83(2), it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence."

After considering a series of judgments Hon'ble Court held as follows:                                                                  

21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:

1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

22. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same.

So far as question of Kalavakurti Venkata Subbaiah's judgment is concerned, facts are very much different. This case relates with registration of sale deed after its execution not the specific performance of contract.

regards 

 

 

 

 

rahul shukla (lawyer)     04 March 2011

So far as question of  S. Kaladevi Vs. V.R. Somasundaram and Ors as refered by you in your reply is concerned is a wrong interpretation of K.B. Saha and Sons Private Limited v. Development Consultant Limited.


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